Louisiana Personal Injury Lawyer Blog

June 28, 2016

Insurance Company Evades Liablity in New Orleans Slip-And-Fall Lawsuit

chinese-take-away-box-1319752 No one wants to ever get involved in a slip-and-fall lawsuit. If your unfortunate enough to be injured in a slip and fall finding out who is responsible to pay for your injuries can become a troublesome matter. A recent Louisiana Fourth Circuit Court of Appeal opinion demonstrates just how complicated these lawsuits can get when a woman alleged she slipped and fell in the China Palace restaurant on South Carrolton Avenue in New Orleans.

As a result of a fall at China Palace, Debra Hershberger filed a lawsuit against the restaurant in July of 2011. China Palace leased its commercial space from LKM Convenience, L.L.C. It is important to note that LKM Convenience leased the space to China Palace, but it did not operate the restaurant. LKM Convenience did have insurance through Montpelier US Insurance Company, but China Palace was not named or insured under its policy. China Palace filed a third-party demand against Montpelier demanding defense and indemnification for LKM Convenience. At the same time, LKM Convenience named Montpelier as a defendant and demanded that the insurance company provide a defense and indemnification for China Palace, its tenant. Consequently, Montpelier filed exceptions of no cause of action and no right of action. The exceptions are legal objections to LKM Convenience’s lawsuit against Montpelier and China Palace’s demand. Ultimately, the trial court maintained the exceptions and China Palace’s and LKM Convenience action were dismissed with prejudice in May of 2014. They appealed that judgement to the Fourth Circuit Court of Appeal for the State of Louisiana.

On the appeal, the Fourth Circuit looked at whether the trial court erred in sustaining both exceptions and whether the trial court erred in not giving China Palace and LKM Convenience a period of time to amend their petitions. Ultimately, the Court of Appeals agreed with the lower court regarding all of the questions.

June 27, 2016

Redhibition Lawsuit Against Monroe Automobile Dealer Dismissed Due to Prescription

by Berniard Law Firm

old-truck-1451289-1024x768 Buying a car is a huge endeavor for most people. Most of the time we do our due diligence and make sure we have a fair understanding of what we are purchasing. However, only so much information is under of our control. When buying a used car, we are often forced to go off of what the seller tells us about the vehicle. This can be nerve racking for many. It’s safe to say that the nerves tend to lessen when we are buying a used car from a certified pre-owned dealership, and the car is under warranty. Unfortunately, for two Louisiana men, a truck under warranty purchased from a reputable dealership caused more problems than were conceivable.

In March of 2005, Barnaby Martinez bought a 2004 Ford F-250 truck. In 2008, he began to experience problems with the engine. The problems were so severe that Mr. Martinez alleged that at times have to use both his feet on the break in order to prevent hitting other vehicles. Mr. Martinez asked his brother-in-law David Leija, a mechanic, to take the truck to the Ford Dealer. In July of 2008, Mr. Leija took the truck to Hixson Autoplex of Monroe.

Hixon replaced the EGR valve and injector on the truck and informed Mr. Leija that the problem was fixed. However, 5000 miles later, the same problem came about. Mr. Martinez continued to bring the truck to Hixon several times. He was told that the warranty would take care of the repairs. Hixon kept the truck days, weeks, and even a month at a time. After getting fed up with the truck and its issues, Mr. Martinez sold the truck to Mr. Leija, who was fully aware of the truck’s problems. In 2012, Hixon informed Mr. Leija that they could not fix the problem, and that because the truck was out of warranty, the cost of repairs was $3000. Mr. Leija never took the truck back to Hixon.

June 26, 2016

Do I Have Uninsured or Underinsured Motorist Coverage In Louisiana?

by Berniard Law Firm

Imagine you are in an accident with a negligent driver. You seek to recover from the negligent driver’s insurance company, only to discover that he or she does not carry any insurance. If you are in Louisiana, you are in luck. Louisiana’s uninsured motorist (“UM”) law protects drivers from the negligence of uninsured motorists. It allows automobile accident victims to recover damages even when the other driver is without insurance. It even provides additional or excess coverage when the other driver is inadequately insured. But how do you know if you have UM or not? UM coverage is implied in every automobile policy and will be read into the policy unless it is validly rejected. In a recent case, the Louisiana Third Circuit Court of Appeal examined exactly who has the authority to waive or reject UM coverage and the requirements of a valid waiver.

In 2007, Naddia Melder was injured in an automobile accident in Alexandria, Louisiana. Ms. Melder was driving her 2006 Nissan truck when she was struck by another vehicle driven by Connie Turlington. Ms. Turlington was uninsured. Ms. Melder’s vehicle was provided to her by her employer, Grimes Industrial Supply, L.L.C., although it was owned by another company, Grimes True Value Hardware, L.L.C. State Farm insured Ms. Melder’s vehicle and provided uninsured motorist coverage to her. Ms. Melder also held a separate policy with Louisiana State Farm Bureau Casualty Insurance Company which provided additional uninsured motorist coverage to her as an insured.

Ms. Melder and Randel Melder filed a lawsuit against State Farm and Farm Bureau for uninsured coverage. State Farm responded with a motion for summary judgment seeking dismissal of the Melders’ claims. It argued that the owner of Grimes Industrial Supply, Floyd Grimes, declined uninsured motorist coverage under the State Farm policy which provided coverage for the vehicle Ms. Melder drove during the collision. The Trial Court granted State Farm’s motion for summary judgment, dismissing it as a defendant. The Melders appealed, arguing that the Trial Court erroneously held that Floyd and Frank Grimes were the named insureds under the State Farm policy. More specifically, the Melders argued that Grimes True Value Hardware, L.L.C. was the named insured.

June 25, 2016

Defendant in Mandeville K-Mart Slip and Fall Lawsuit Has Case against it Dismissed

by Berniard Law Firm

kmart-s-giant-clown-balloon-1427236 In 2011 Peggy McCastle-Getwood was an employee at the K-Mart in Mandeville, Louisiana. On May 26, 2011 she arrived to work around 8:00 a.m. and went to the back of the store to place her belongings in the locker room. With a cup of coffee in her hand, Ms. McCastle headed back to the front of the store and slipped and fell.

In March of 2012, Ms. McCastle filed a petition for damages and named Professional Cleaning Control (Professional) as a defendant. Professional Cleaning Control was a company hired by K-Mart to clean the floors in the Mandeville store. She asserted that she sustained injuries caused by the negligence of a Professional Employee leaving a liquid substance where she fell. Subsequently, K-Mart filed a petition to intervene, setting forth that it had paid for medical expenses and workers’ compensation benefits for Ms. McCastle, as a result of her injury at work. See LA C.C.P. Art. 1091

In September of 2013, Professional filed a motion for summary judgment based on Ms. McCastle’s deposition. In her deposition Ms. McCastle testified that she did not how the liquid substance got on the floor, nor did she know how long the liquid substance was on the floor. Based on this testimony, Professional asserted that Ms. McCastle would not be able to meet her burden of proof that Professional owed a duty of care, or if a duty was owed, that the duty had been breached.

June 24, 2016

Are There Deadlines to Appeal a Medical Director’s Decision For Workers Compensation Claims in Louisiana?

by Berniard Law Firm

Deadline
In Louisiana if you are hurt at work there are workers’ compensation laws in place to make sure the injured employee gets the type of relief he or she needs and deserves. Within the Workers Compensation Statutes there are deadlines and time frames to which both sides must adhere and they are in place to streamline the process of efficiently getting relief for the injured employee. With a good workers compensation attorney those time frames can actually help the injured employee. But what about the decisions of a medical director to deny treatment, are there deadlines to appeal those decisions? The following case out of Monroe Louisiana discusses the time limits that apply in those circumstances.

On June 30, 2012 Calvin Arrant was on the job driving around the Parish of Ouachita, Louisiana when an 18-wheeler ran a red light and smashed into his car. Mr. Arrant was a surveyor for Wayne Acree PLS, Inc. His job included carrying heavy equipment oftentimes over rough terrain. He continued to work after the accident, but despite his attempts the pain became too unbearable to perform his job any longer. Two months after the accident, Mr. Arrant had lower back pain that radiated into his shoulder, legs, and feet. Furthermore, he needed the assistance of a cane to help him walk due to the numbness in his left leg.

Mr. Arrant eventually sued his employer and their workers compensation insurance provider alleging that they had refused to allow Mr. Arrant to see the physician of his choice and refused to provide tests and procedures recommended by his treating physician. The parties agreed that Mr. Arrant was hurt on the job, i.e., “he was involved in an accident within the course and scope of his employment.” However, at issue was whether Mr. Arrant’s appeal to the medical director’s decision to deny Mr. Arrant’s MRI requests was timely. A worker’s compensation judge found that it was not and the court of appeal agreed.

June 23, 2016

First Circuit Court of Appeal Affirms Award of Attorney Fees and Expert Witness Fees In Expropriation Lawsuit

by Berniard Law Firm

Farm-Land-expropriation Gerald O”Hara from Gone with The Wind said it best, “The land is the only thing in the world worth working for, worth fighting for, worth dying for, because it’s the only thing that lasts.” While land ownership is a sacred right in this nation it does not prevent the state government from taking your land through a process called expropriation.That process requires that the State of Louisiana pay a fair price for private land that has been expropriated for public needs. The state must be careful in ensuring that they pay full value for the expropriated land as Louisiana statutes allow the landowner to recoup attorney fees if they are successful in proving the payment was less than adequate. The following case out of West Feliciana Parish demonstrates what can happen when expropriation doesn’t lead to fair compensation.

In 2005, the Louisiana Department of Transportation and Development (DOTD) filed a petition under La. R.S. 48:442, in which it sought to expropriate part of a tract of land owned by the James Munson. Munson owned over fourteen acres of land, on which he had operated a bed and breakfast, plant nursery, and gift shop called “Stillwater Farms.” The compensation for the expropriated land was estimated to be $143,654.00, an amount that was deposited into the register of the court, where Munson could withdraw it without prejudice to his right to contest the amount as inadequate.

Munson subsequently filed a demand alleging the amount paid for expropriation of the property was insufficient to cover the value of said property. Munson also requested attorney fees pursuant to R.S. 48:453(E) as well as recovery of expert witness fees. At a jury trial, both Munson and the DOTD offered expert testimony regarding the amount of compensation due for the expropriated property. The jury found that the value of the expropriated property was $148,640.00, that the remaining property was not damaged from the expropriation, and that Munson was not due any additional compensation for loss. At a subsequent hearing on attorney fees, the court ordered DOTD to pay attorney fees, legal interest on the difference between the amount deposited and the determined value of the property, court costs, and expert witness fees.

June 22, 2016

Louisiana Supreme Court Highlights Pleading Requirements for Putative (Unestablished) Parents in Wrongful Death LawSuits

by Berniard Law Firm

Imagine your child passed away in the most horrific way. You seek remedies in the court system, but the court does not recognize your right of recovery as a parent. What a nightmare. In Louisiana, a putative (unestablished) father must timely file an action for avowal (a father’s action to establish paternity) in order to maintain a wrongful death or survivor action for the death of a child born out-of-wedlock. Failure to do so may forfeit your legal rights. A recent case from the Louisiana Supreme Court discusses the pleading requirements regarding paternity in filing wrongful death and survivor actions.

In March of 2011, six-year-old La’Derion Miller was killed shortly after being involved in a gruesome accident with a school bus. While La’Derion was attempting to board the school bus his was caught in the door. Harold Thibeaux, the bus driver, was unaware of La’Derion’s predicament and La’Darion was dragged for approximately eighty feet. When La’Derion’s arm was dislodged, he fell beneath the wheels of the bus and was critically injured. La’Derion died less than an hour later. His six years of life were cut short. Tragically, La’Derion’s mother, Heather Jagneaux, watched the entire incident from her front yard, but was unable to reach him in time.

La’Derion’s father, Marcus Miller, filed a lawsuit individually and on behalf of the estate of his deceased son. Mr. Miller sought damages for La’Darion’s pain and suffering inflicted by the bus driver’s negligence, as well as damages arising out of the wrongful death of his son. Mr. Miller’s lawyers named as defendants the bus driver, his insurance insurer, his employer, and his employer’s insurer.

June 21, 2016

West Monroe Woman’s Slip and Fall Lawsuit Revived by Appeals Court on Constructive Knowledge Grounds

by Berniard Law Firm

Handrails-768x1024 As the old saying goes, “accidents happen.” But, in personal injury lawsuits, like in many matters, another saying is more on point: “The devil is in the details.” And on that point the Second Circuit Court of Appeals reversed a summary judgment in favor of the City of West Monroe in a lawsuit brought by an elderly woman who claimed she was injured in a fall. The lawsuit against the city arose from purported negligence in maintaining the handrails of a handicap ramp located at the West Monroe court facility. The plaintiff, Bernice Walters, alleged that the handrail collapsed as she was using it to lower herself into her vehicle, which was in a parking space adjacent to the handicap ramp. Walters alleged that the city had constructive knowledge of the defective condition of the handrail. In response, the City of West Monroe moved for summary judgment and the motion was granted by the trial court.

The trial court cited a lack of evidence that the city had actual or constructive notice of the condition of the handrail; there was insufficient circumstantial evidence to prove that the city knew of the defective handrail. Appealing the summary judgment, Walters asserted that the city violated the Americans with Disabilities Act by failing to maintain the handicap ramp in a manner consistent with the ADA regulations. This violation of the ADA allegedly satisfied the burden of proof for constructive knowledge, since the existence of relevant regulations suggests that the city should have known that their lack of maintenance was negligent.

Upon review, the appellate court accepted Walters’ theory of constructive knowledge and reversed the summary judgment. The appellate court examined the relevant Civil Code statute concerning public entities. See La. R.S. 9:2800. As a result, the court concluded that constructive knowledge does not require circumstantial evidence proving actual knowledge; instead, the standard for constructive knowledge is satisfied if a reasonable custodian or owner should have known of the defect while exercising reasonable care.

June 20, 2016

Decision of Livingston Parish Jury Reinstated in Multiple Car and Tractor Crash Lawsuit

by Berniard Law Firm

tractor-1454432-1 On the back roads of Louisiana it is not uncommon to see tractors and other farm equipment traversing the highway. If that farm equipment is involved in an accident with a car everyone involved might have a different story on how it occurred. If that happens it takes the best lawyers to help the court figure out who is at fault. The following case out of Livingston Parish shows how the courts deal with opposing views of fault in cases where cars and tractors collide.

On August 13, 2009, a multiple-vehicle collision occurred between drivers Yearn Thomas, Breanna Cloud, and tractor operator Stephen Jones on Louisiana Highway 1026 in Livingston Parish. Predictably so, the parties contested the sequence of events that led up to the incident, exactly how it came to fruition, and who was at fault.

Thomas and Cloud claimed that Jones unexpectedly swerved into the roadway from the shoulder and caused the multiple-vehicle accident when the tractor collided with Cloud, causing Thomas to subsequently collide with Cloud, then overturn into a ditch. Jones testified that Cloud collided with the left side of his bush hog and immediately after the initial impact, he heard the loud noise of Thomas colliding with Cloud and reacted by turning his tractor into the ditch on the right to avoid any more damage.

June 19, 2016

Bogalusa Slip and Fall Lawsuit, Is Travis’s Grocery and Market Liable?

by Berniard Law Firm

Grocery-Store Anyone who has purchased chicken from a grocery store knows that for some reason the packing always seems to leak. But what happens if that leakage occurs in a grocery store and you slip on it and hurt your back, is the grocery store responsible? The following case out of Washington Parish Louisiana clarifies the standards used by courts when addressing that question.

On July 5, 2011, Sylvia Jackson-Silvan visited Travis’s Grocery & Market on Derbigny Street in Bogalusa, Louisiana. While waiting in line in the check-out aisle, she slipped on “blood drippings from chicken” that had pooled on the floor. Mrs. Silvan was helped up by store employees, who quickly mopped up the liquid, before leaving the premises without further assistance.

Mrs. Silvan and her husband, James Silvan, filed a lawsuit the following February, arguing that Travis’s Market was “strictly liable for allowing dangerous conditions to exist in the store, which posed an unreasonable risk of harm and caused injury to Mrs. Silvan.” The Silvans then filed a motion for summary judgment, stating there was no material issue of fact to be decided at trial. No memorandum, exhibit, or statement of fact accompanied the motion. Travis’s Market filed its own motion for summary judgment, which was accompanied by a memorandum and numerous exhibits, stating that the essential elements of the Silvans’ claim could not be supported. A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Dickerson v. Piccadilly Restaurants, Inc., 1999-2633 (La. App. 1Cir. 12/22/00).